Calcutta High Court (Appellete Side)
Lallan Thakur vs Union Of India And Others on 21 September, 2017
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 29595 (W) of 2016
Lallan Thakur
Vs.
Union of India and Others.
For the petitioner : Mr. S. K. Dutta, Advocate
Mr. Barun Chatterjee, Advocate
For the Railways : Mr. Sukhendu Banerjee, Advocate
Heard on : 04.04.2017, 19.06.2017, 23.06.2017,
30.06.2017
Judgement on : 21.09.2017
Sambuddha Chakrabarti, J.:
The petitioner was an employee of the Railway Protection Force. While he was posted at Adra Division in the District of Purulia, he was provided with a railway quarter at a monthly rental of Rs. 40/- which was deducted from his salary. In the year 1992, he was transferred to Burnpur in the District of Burdwan. He alleges that the relevant Railway Rules and Circulars permitted him to stay in his allotted quarter at Adra even after his transfer. The petitioner decided to retain the quarter for facilitating his children to prosecute their studies there.
On August 22, 1992, the petitioner received a notice from the Divisional Security Commissioner, i.e., the respondent no. 4, informing him that the retention of his quarter was sanctioned at the normal rental on and from July 10, 1992 to September 9, 1992 and special license fee at the rate of Rs. 80/- per month from September 10, 1992 to April 30, 1993. Subsequently, he received a letter enhancing the rent to be paid by him as mentioned in the earlier order. The petitioner unsuccessfully challenged the same by a writ petition.
On July 22, 1993, the respondent no. 4 issued a letter for the recovery of rent at damage rate due to the unauthorized retention of the quarter at the rate and for the period as mentioned in the said letter. The petitioner was further directed to vacate the quarter. The second writ petition by him was disposed of by this Court on March 4, 2004, directing the respondents to dispose of the representation made by him after giving him an opportunity of being heard. An order of status quo was also passed which was to remain in force till the disposal of the representation.
The petitioner alleges that after his retirement in the year 2015, he received his retiral benefits, except the amount of gratuity which has been withheld by the respondents authorities without assigning any reason. For the non-disbursement of the gratuity, he made a representation on July 16, 2015 before the appropriate authority which had not yet been disposed of.
In the year 2015, he filed the third writ petition which was disposed of by an order, dated October 14, 2015. Against that order, the petitioner filed an appeal which was disposed of by an order, dated September 20, 2016 directing the respondents to decide both the representations of the petitioners as mentioned therein after giving the petitioner an opportunity of being heard. Subsequently, a personal hearing was given to the petitioner and, thereafter, the Senior Divisional Security Commissioner, i.e., the respondent no. 5 passed an order accompanied by a calculation of damage rent. The petitioner alleges that his grievance was not considered by the respondents who held that he had retained the railway quarter beyond reasonable time, as a result of which an amount of Rs. 7,11,839/- would be recovered from the petitioner's settlement dues as per the existing Railway Rules.
The petitioner has challenged this order on the ground that no proceeding under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (the Act, for short) was ever initiated against the petitioner. No damage rent could be assessed and realized without following the provisions of Section 7 of the said Act. There is no provision for realization of any damage rent or any part thereof from the retirement gratuity. It has been the case of the petitioner that he never drew any house rent allowance but on the other hand the authority realized rent at the rate of 130/- per month during the period of his overstay which was not taken into consideration while passing the order.
The petitioner, therefore, has prayed for quashing the impugned notice dated November 18, 2016 along with the statement of damage claim and for a direction to release the gratuity amount in his favour along with interest.
The respondents contested the writ petition by filing an affidavit-in-opposition affirmed by the respondent no. 5. According to the respondents, the petitioner even after his transfer to Burnpur did not vacate and surrender the railway quarter knowing well that he was not so entitled. The petitioner submitted a representation to the respondent no. 5 for permitting him to retain the quarter at Adra till completion of the school session of his children i.e., April, 1993. Pursuant to the same, the petitioner was permitted to retain the railway quarter at Adra till April, 1993 on the usual rent in terms of the relevant Rules. After the expiry of the said period he did not on his own vacate and surrender the quarter and still retained the same in his occupation without any intimation to the authority. For this damage rent at the rate of Rs. 15/- per square meter of the plinth area per month in respect of the railway quarter was directed to be recovered from the petitioner in terms of the Railway Board's letter dated January 19, 1991 and February 20, 1991 which were all communicated to the petitioner.
The respondents have taken exception that no communication as regards the disposal of the second writ petition was made by the petitioner and he remained silent all along. Since none represented the respondents in Court on that date, the respondents were not aware of the order, dated March 4, 2004 and about ten years thereafter the petitioner had served a copy of the said order upon the respondents. Pursuant to the said order, dated March 4, 2004, three notices were issued to the petitioner by the Railway administration. In spite of the notices the petitioner did not appear as directed by this Court for a personal hearing and did not co-operate with the concerned authority. Therefore, no decision could be arrived at over the representation made by him on July 16, 2015 and the alleged grievance could not be resolved by the Railway administration. The respondents have specifically mentioned that when the petitioner was again twice posted at Adra for two different periods no fresh and further representation for allotment of the railway quarter in his favour was submitted by him and for that the entire period from May 1, 1993 to July 2, 2014 i.e., till the date of vacating the railway quarter, was treated as unauthorized occupation for which the damage rent is leviable as per the Railway Rules.
The gratuity of the petitioner has been withheld for realizing the recovery of house rent from him for the unauthorized occupation of the railway quarter for the period as mentioned above. The house rent after his retirement being an arrear of government dues is liable to be adjusted against the amount of gratuity in terms of the relevant rules of Railway Services (Pension Rules), 1993 (the Rules, for short). The respondents have mentioned that pursuant to the order passed by a learned single Judge in the third writ petition filed by the petitioner the respondents again asked to him to appear before the respondent no. 5 on any working day as mentioned in this notice. The petitioner again failed to turn up. In terms of the order passed by the Division Bench on September 20, 2016 the petitioner was again called for a personal hearing to appear before the appropriate authority. This time he appeared before the respondent no. 5 on November 16, 2016. The respondent no. 5 had given him a hearing. All the relevant Railway Rules and laws in connection with house rent and gratuity were discussed, read over and explained to him at the time of hearing. The petitioner was intimated that damage rent would be recovered from his gratuity as per the relevant Rules.
The answering respondents have stated that deduction towards the license fee of the quarter was effected as per the relevant Rules and orders and, therefore, the question of improper deduction does not and cannot arise at all. The license fee for occupying a quarter was enhanced as per directions of the Railway Board from time to time and, therefore, orders in partial modification of the earlier orders were in turn issued from time to time and the petitioner was kept informed of the same. After the expiry of the permissible period of retention of the quarter, the damage rent is applicable for unauthorized occupation of the railway quarter in terms of the direction of the Railway Board. Rule 15(2) of the relevant Rules provides for adjusting any assessed railway or government dues against the amount of retirement gratuity or death gratuity. Accordingly, the retirement gratuity of the petitioner was withheld to effect recovery of government dues arising out of the damage rent for unauthorized occupation of the quarter.
The respondents have brought a serious allegation that the petitioner deliberately did not serve the order of this Court, dated March 4, 2004, upon the respondents for about a decade as he wanted to usurp the gratuity amount without making any adjustment of the arrear government dues. This was deliberately done to steal a march over the Railway authorities to obtain the gratuity. No eviction proceeding was initiated against the petitioner as this Court by an order, dated September 6, 1993 had directed the railway authorities to maintain status quo and direct the petitioner to pay rent at the rate of 130/- per month. Therefore, the question of proceeding under the Act mentioned by the petitioner did not arise. The respondents have prayed for dismissal of the writ petition.
The petitioner has filed an affidavit-in-reply largely reiterating the stand taken by him in the writ petition. It has been his case that the amount directed to be recovered from him is not the house rent as the respondents have already realized the enhanced license fee from the monthly salary of the petitioner and the damage rent could not have been assessed without initiating a proceeding under the Act. Therefore, the Rules have no manner of application to the present case. In terms of the said Act that the respondents are not the proper authorities to assess the damage rent. The respondents never issued any show-cause notice before the recovering the amount from retirement gratuity.
The first and preliminary question which has cropped up for consideration in the present writ petition is whether the respondents could pass the order impugned in terms of their own rules and regulations and policies for allotment, retention and imposition of penalty, damages for unauthorized occupation of a railway quarter or whether the provisions of the Act applies to the situation, as claimed by the petitioner. It has been his persistent case that the respondents cannot recover the damage rent from the petitioner without resorting to the procedure laid down in the said Act and that the respondents did not consider the fact that the damage rent could not be assessed and realized without following the provisions of Section 7 of the said Act.
If one considers the definition of "Public Premises" under the Act, it becomes obvious that the quarter occupied by the petitioner qualified to come within its definition as provided in Section 2 (e) of the Act.
On this there cannot be any doubt. But merely because the quarter comes within the purview of public premises, the said Act does not apply to the quarter allotted by the railways to an employee.
The law on the point is very well-settled that an Act which is in the nature of a special legislation shall prevail over all general ones. In the case of Dom. Ji Vs. LIC of India, reported in AIR 1966 SC 135, the Supreme Court reiterated the very well-accepted principle of statutory interpretation and this Act has also been considered as a special Act as it deals with some specific properties. But the status of an Act, whether it is special and general in nature, varies according to the nature and scope of the other Act in relation to which one Act is classified as a general or a special one. This Act is considered as a special one vis-à-vis the general rent legislations. Again as against the other more specialized legislations, the Act is may be considered as a General law and the other Act is a special one. It is thus always a relative concept depending upon the nature of the other Act in relation to which the status of a particular Act is to be decided.
A similar question cropped up for consideration before a Division Bench of Bombay High Court in the case of Arjun Babloo Tukaral Vs. G. V. Javalkar and Others, reported in AIR 1981 Bombay 72. There also the petitioner was an employee of the Western Railway and was allotted a railway quarter which he retained after his retirement. When the respondents initiated the proceeding for evicting the petitioner in terms of the Railways Act, it was, inter alia, contended by him before the Division Bench of the Bombay High Court that the Railways Act will not be applicable to the premises in question but the provisions of the said Act would as the premises are public premises. The Division Bench after considering the issue in details held that operation of the relevant provision of the Railways Act is confined to the property mentioned therein i.e., those belonging to the railway administration. The provisions of the procedure prescribed in the Act are applicable to all the premises which are defined in the Act in Section 2(e) as public premises. This provision of the Act is, therefore, of wider application and applies to all public premises of the Central Government as provided in the definition of public premises. The provisions of the Act are much of wider scope and applicable to all premises as defined in Section 2(e) of the Act. But the premises to which the Railways Act applies belongs to a definite class of persons and premises. They are applicable to the definite classes of premises occupied by a railway servants. The Railways Act, therefore, deals with limited number of classes of persons. Therefore, it is a special Act as against the Act of 1971 which is a General Act. I respectfully agree with the view taken by the Division Bench of the Bombay High Court.
If the Railways Act applies to a railway quarter allotted to a railway employee the rules and regulations framed under the Act must also be applicable to the facts of the present case as the statutory rules made on the authority of the Railways Act.
The case of the petitioner may be judged by the particular facts of the case. The petitioner has specifically mentioned that after his transfer to Burnpur the respondents in terms of the relevant Railways Rules and Circulars permitted him to stay in his allotted quarter at Adra even after being transferred to Burnpur. While making the statement the petitioner forgot to mention that it was pursuant to a representation made by him in July 1992 to the respondent no. 5 for permitting to him to retain the railway quarter at Adra till the completion of school sessions of his children i.e., April 1993. It was pursuant to the said representation that he was permitted to retain the quarter till April, 1993 on educational ground of his children. The respondents have specifically stated in para 4A of their affidavit-in-opposition which has not been controverted at all by the petitioner in his reply. Thus, this is a clear case of suppression of the fact that he was allowed to retain the quarter only on his prayer for facilitating them to complete the school session. By suppressing this fact the petitioner tried to convey an impression that the permission to retain the quarter was an absolute one or for an indefinite period and granted by the respondents on their own. The truth is that because of a prayer on behalf of the petitioner that he was directed to pay the rent at the requisite rate only till April 30, 1993.
On July 22, 1993, the respondents intimated the petitioner that damage rate of rent was to be recovered from him due to his unauthorized retention of the quarter with effect from May 1, 1993, at a certain rate mentioned in the concerned communication. Therefore, the petitioner was made aware that the nature of his possession was unauthorized and the rate at which the damage rent was to be recovered from him was also made known to him with reference to the specific letter of the Railway Board. The petitioner was also directed to vacate the railway quarter immediately. This also constituted a sufficient notice to the petitioner for vacating the quarter. The second writ petition was disposed of on March 4, 2004, directing the respondent no. 3 to take into account the representation made before him. Status quo and the interim order granted earlier was directed to remain in force till the disposal of the writ petition made by the petitioner.
Now the conduct of the petitioner is a relevant consideration. The very specific case of the respondents is that the petitioner did not disclose this order for a period of about 10 years and it was only shortly before his retirement that he had submitted the order to the authorities. Since this order was passed ex parte, the respondents had no means to know which order was passed and the petitioner taking advantage of the interim order and the order of status quo till the disposal of the representation did not allow the respondents to dispose of the same.
The Court cannot praise the conduct of the petitioner as an unblemished one. If he had not produced a copy of the order he must have deliberatlely not disclosed it to the respondents and thereby prevented them from disposing of his representation as directed by this court. In his dealings with the respondents authorities he did not come with clean hands nor did he come with clean hands before this court as he never disclosed that the order was not served upon the respondents. This is another instance of suppression of material fact. On the contrary after narrating the gist of the order, dated March 4, 2004 in paragraph 11 of the writ petition, he straightway came to his retirement in the year 2015 and the issue of the pension payment order etc. and his allegedly precarious financial condition in the subsequent two paragraphs i.e., paragraphs 12 and 13. If the court had directed a hearing to be given to him by the respondents it was incumbent upon him to mention the outcome of the order or the steps taken by the respondents in compliance therewith. The petitioner deliberately did not mention it for he wanted to suppress that the order had not been served upon the respondents in a decade's time.
It was only after the Division Bench had directed the petitioner to appear before the respondents authorities on September 20, 2016, that he had appeared as that order was passed by the Division Bench in presence of the learned Advocate for the Railways so that it could not be suppressed and, secondly, by that time the petitioner had vacated the quarter.
So far as the order of the damage rent is concerned it appears from the order itself as well as from the affidavit of the respondents that the law relating to the permissibility of charging the damage rent was discussed and explained to the petitioner at the hearing given by the respondent no. 5. The persistent case of the petitioner is that the relevant Rules of the Railway Protection Force did not permit imposing damage rent upon the petitioner who was retaining the quarter beyond the permissible period. The respondents had clarified the legal position in their affidavit and it also appears from the order impugned that there are specific provisions for the same justifying the order passed by the respondent no. 5. According to the relevant Rules of the Railway Protection Force it shall be a condition of service that a member of the Force shall vacate the accommodation on his transfer from one place to another. Again in terms Rule 15(4)(i)(b) of the Rules a claim against a railway servant also includes the unpaid house rent. The respondents had claimed that they have a right to adjust the house rent payable by the petitioner against the retirement gratuity in terms of Rule 15(2) of the said Rules. We shall consider the same later.
But so far as the order impugned is considered I find absolutely no impropriety in it. The respondent no. 5 had rightly held the entire period from May 1, 1993 to July 2, 2014 as unauthorized retention of the railway quarter by the petitioner. I quite agree with the stand of taken by the respondent no. 5 and the logic employed by him that during his two subsequent postings at Adra the petitioner did not request for the allotment of a railway quarter. He cannot treat the retention of the quarter during those two subsequent periods of stay at Adra as a valid retention. In order to hold a quarter validly and in accordance with law the concerned quarter must be duly allotted in his favour upon compliance of certain formalities. That not having been done the retention of the quarter even during his subsequent postings at Adra did not alter the nature of his occupation.
The calculation of the damage rent payable by the petitioner also appears to be without any flaw. The calculation has been made on the basis of the rates at which such damage rent is recoverable from the petitioner according to the rates as fixed from that time to time. The petitioner alleged that Rs. 130/- per month has been realized from him for occupation of the quarter. That was done pursuant to the order of the Court. His allotment of the quarter was determined in the year 1993 itself. The respondent no. 5 had even taken that into cognizance and adjusted the amount so paid by the petitioner against the total sum payable by him as the damage rent. And, therefore, after deducting the amount already paid by way of rent the damage rent payable by the petitioner has been quantified to Rs. 6,80,379/-. I find absolutely no impropriety in the order passed.
The petitioner's plea for setting aside the order, dated November 18, 2016 must fail.
This takes us to an equally important aspect involved in the matter i.e., whether the respondents are entitled to withhold the retirement gratuity only because the petitioner has not paid the damage rent for the unauthorized occupation by him. They laid no bones about it that the gratuity of the petitioner has been withheld for realizing the recovery of the house rent which, according to the respondents, is liable to be adjusted against the amount of retirement gratuity in terms of the concerned Rules as mentioned above. It is true that Rule 15(4)(ii) of the said Rules empowers the respondents to take an action as specified in Rule 15 (4)(iii) of the said Rules. The Rules empower the railways to either take a cash deposit from a retiring or retired employee or to withhold such portion of the gratuity as may be sufficient till the outstanding dues are assessed and adjusted. In the present case, the outstanding dues on account of unauthorized retention of the quarter have already been assessed. The respondents, therefore, claim that they have a right to withhold the retirement gratuity of the petitioner till the dues are realized from the petitioner.
Even if the railways have such a specific provision of law permitting them to withhold the gratuity for realizing the house rent or for compelling the retired employees to vacate the quarters, the same is not very favourably looked upon by courts. There have been series of decisions of the Supreme Court where withholding of gratuity for realization of any due from a retired employee of an establishment has been rather severely dealt with. In the case of R. Kapur Vs. Director of Inspection (Painting and Publication) Income Tax and Another, reported in (1994) 6 SCC 589, the appellant had retired as the Director General of Income Tax but his gratuity was not released for non-vacating the government accommodation. The Central Administrative Tribunal held that death-cum-retirement gratuity could not be withheld merely for non-vacating the government quarter. When the matter went to the Supreme Court, it recorded the finding of the Tribunal that gratuity cannot be withheld merely because the claim for damages for unauthorized occupation was pending and observed that the Tribunal should have granted interest at the rate of 18%, instead of 10%, as right to gratuity is not dependent upon the appellant's vacating the official accommodation. The Supreme Court observed that the order was without prejudice to the rights of the respondents to recover damages under the relevant Rules.
Again in the case of Gorakhpur University and Others Vs. Dr. Shitla Prasad Nagendra and Others, reported in AIR 2001 SC 2433, the Supreme Court had reiterated that pension and gratuity are not matters of any bounty to be distributed by the government but are valuable rights acquired by an employee and is a property in his hand. Any delay in settlement and disbursement of the same should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Withholding of the same for not vacating the quarters allotted to an employee which he was in service is not a valid ground for not disbursing the terminal benefits.
In the case of State of Jharkhand and Others Vs. Jitendra Kumar Shrivastava and Another, reported in (2013) 12 SCC 210, the Supreme Court had again an occasion to consider the same issue. There also the Supreme Court relied on the earlier Constitution Bench Judgment in the case of Deokinandan Prasad Vs. State of Bihar, reported in (1971) 2 SCC 330, for a proposition that the right to receive pension is a right to property so as to attract Article 19(1)(f) and Article 31(1) (as it stood the relevant date) of the Constitution of India. Even if Article 31(1) of the Constitution of India had been repealed by the Constitution (forty- fourth Amendment) Act, 1978, the right to property is still a constitutional right under Article 300A of the Constitution of India. Although the decision was concerned with the pension of the appellant, it also equally applies to gratuity as observed by the Supreme Court in the judgment referred to above.
Therefore, I am of the view that the decision to withhold the retirement gratuity for realization of the damage rent is not a permissible act on the part of the respondents. Gratuity, unless coming under the permissible and specified cases for non- disbursement, cannot be withheld either for compelling a retired employee to vacate the quarter or to realize the house rent for the unauthorized occupation of the quarter.
I, therefore, direct the respondents authorities to release the entire retirement gratuity in favour of the petitioner within a period of four weeks from the date of communication of the order. The gratuity shall also carry an interest at the rate of 10% per annum to be calculated from the date after the expiry of 30 days from the date of his retirement till the date of actual payment.
The above direction to disburse the gratuity shall not in any way affect or even dilute the right of the respondents to realize the assessed damage rent for the unauthorized occupation of the quarter. The respondents' right to realize the same is not interfered with. The petitioner is directed to make the payment of the sum so assessed by the respondents towards the damage rent within a period of six weeks from the date of communication of the order. In case the petitioner does not pay the same, I give liberty to the respondents to realize the same from the pension of the petitioner by such installments as the respondents may decide keeping the monthly pension of the petitioner in consideration.
Before parting with, it is necessary to repeat that in order to make out a case in his favour some important materials have been deliberately suppressed. The material suppression was made to suggest a false state of affairs. I, therefore, direct the petitioner to pay Rs. 20,000/- as costs to the respondents authorities within a period of four weeks failing which the respondents shall be at liberty to realize the same from the pension payable to the petitioner in such monthly installments as they may decide.
With the directions as above, the writ petition partly succeeds.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee